USCIS recently announced a new immigration procedure that will allow certain family members of U.S. citizens who are in in the United States illegally and need to apply for a waiver before becoming eligible for a green card, to apply for that waiver before leaving the United States.
Currently, certain relatives of U.S. citizens who are eligible for a family-based green card, but have been living in the U.S. illegally, must depart the U.S. and apply for their green card at the U.S. Consulate abroad. Because they have been in the U.S. illegally, they must apply for a waiver. When departing the U.S., families take a major risk that the waiver will not be approved, meaning the green card will be denied and the family member will be stuck outside the U.S. Even if the waiver is actually approved, it can often take months, leaving family members separated.
The new procedural rule, which will go into effect on March 4, 2013, will allow certain immigrant relatives to apply for a "provisional unlawful presence waiver" in connection with their green card applications. The provisional waiver application will be made on the Form I-601A which USCIS will publish in the upcoming weeks.
If approved, the waiver will allow the immigrant relative to depart the U.S., attend his/her immigrant visa interview abroad, and return to the U.S. without significant delay in order to receive the green card. This new rule represents groundbreaking progress for immigrants and their U.S. citizen relatives, as the previous procedure required immigrants to apply for their waivers after leaving the U.S. and remain outside the U.S. while they awaited the waiver's approval. This old procedure resulted in many families suffering long separations from their spouses, children, and parents for several months or even many years.
An immigrant relative will require an unlawful presence waiver if the person accrued more than six months of unlawful presence (i.e. illegal stay) in the U.S. and wants to apply for a green card. There are three main requirements to qualify for the waiver:
- The applicant must be an "immediate relative" of a U.S. citizen. In family-sponsored immigration, immediate relatives are spouses, parents (if the U.S. citizen is at least 21 years old) and children (if the children are under the age of 21).
- The applicant's only ground of inadmissibility is the unlawful presence (the applicant cannot have a criminal record or other immigration violations).
- The applicant must prove that a denial of the waiver application would result in extreme hardship to the applicant's U.S. citizen relative.
This third requirement of proving extreme hardship is often the most difficult part of the application but it is also arguably the most important. There are no steadfast rules for proving extreme hardship, but typical hardship factors include the potential effects of the family separation if the U.S. citizen cannot accompany the immigrant relative abroad, economic hardship the U.S. citizen would suffer if the immigrant relative must depart the U.S., medical issues the U.S. citizen must deal with that require the constant assistance and care of the immigrant relative, and country conditions abroad that would adversely affect the U.S. citizen if he/she accompanied the immigrant relative abroad.
Although the provisional waiver represents a great victory for immigrant relatives, there are limits to the new waiver's benefits. For example, the waiver is called "provisional" because the government could revoke the waiver after granting it. The government may revoke the waiver if it discovers that the applicant has other immigration violations or a criminal record that were not disclosed on the provisional waiver application. Additionally, it is important to remember that the provisional waiver does not confer any legal immigration status and it does not provide work authorization.
Due to the complexity of immigration laws and regulations, it is highly recommended that foreign nationals contact skilled immigration attorneys to assist them with their cases.
To schedule a consultation with our office to discuss your immigration needs, call us at 650-293-0270, or simply complete our online contact form.
Additional Blog Posts
Green Card Bill Passes for Widows of U.S. Citizens, Silicon Valley Immigration Lawyer Blog, October 23, 2009
Family-Based Visas Going Unused, Silicon Valley Immigration Lawyer Blog, July 8, 2010